SUBASINGHE

Vs.

UNIVERSITY OF PERADENIYA AND OTHERS

COURT OF APPEAL
SAMAYAWARDHENA, J.
CA/WRIT/376/2017
FEBRUARY 24, 2020

Writs of certiorari and mandamus-Universities Act, No. 16 of 1978, sections 24, 44, 46, 48, 86, 136-Academic matters distinguished from disciplinary matters-Powers of the University Council and the Senate-Jurisdiction of the University Services Appeals Board-Decisions made without jurisdiction are a nullity

The petitioner, a senior lecturer at the University of Peradeniya, lectured, set the question paper and examined the answer scripts of the Corporate Governance subject in the post-graduate diploma course. After his final marking, 29 out of 39 students passed. The Faculty Higher Degrees Committee appointed a five-member committee of examiners to re-examine the answer scripts. The committee, without examining the answer scripts, standardised the marks sans any rational basis to increase the pass rate. As a result, all but two students passed.

Upon the request of the Dean of the faculty, the Vice Chancellor placed the issue before the University Council which decided to hold an

inquiry. After the inquiry, the University Council deferred the petitioner's promotion and reduced his seniority by four years on the ground of negligence.

The appeal filed against this decision was dismissed by the University Services Appeals Board (USAB) which concluded that the University Council had followed the proper procedure in meting out punishment and hence the USAB had no jurisdiction to go into the merits of the appeal.

The petitioner filed this application before the Court of Appeal predominantly seeking to quash the decision of the USAB by certiorari and to compel the Vice Chancellor by mandamus to grant him his due entitlements which he had been denied due to the aforesaid punishment.

Held:

1. Although the USAB is an appellate body and not a body of judicial review, it has erroneously acted as a body of judicial review. Unlike in judicial review, on appeal the appellate body shall decide the appeal on the merits unless the appeal can be decided on any other ground, be it legal or procedural.

2. In terms of section 44 of the Universities Act, the University Council shall be the executive body and governing authority of the university, and in terms of section 46 the Senate shall be the academic authority of the university. This is an academic matter and not a disciplinary matter. Hence it is wrong to have referred the matter straight to the University Council bypassing the Senate.

3. The Faculty Board or Departmental Higher Degrees Committee or Faculty Higher Degrees Committee cannot appoint examiners. The appointment of examiners shall be done by the Senate on the recommendation of the Faculty Board and Higher Degrees Committees.

4. There is no clear evidence that the examiners in the five-member committee were selected from a list approved by the Senate. In any event, the majority of the committee did not comprise examiners approved by the Senate. The decision taken by the five-member committee to re-examine or standardise the marks is ultra vires.

5. If the first decision of the Departmental Higher Degrees Committee and Faculty Higher Degrees Committee to appoint examiners is ultra vires, it is a nullity for all intents and purposes. Everything that flows from a decision which is a nullity automatically becomes a nullity without further ado.

6. An act can be challenged on the basis of nullity either directly or indirectly, i.e. collaterally.

7. The USAB did not look at the issue from the proper perspective. It considered the appeal at a superficial level and erroneously dismissed it without going into the merits.

Cases referred to:

1. Public Interest Law Foundation v. Central Environmental Authority [2001] 3 Sri LR 330 at 334
2. Macfoy v. United Africa Co Ltd [1961] 3 ALL ER 1169 at 1172
3. Rajakulendran v. Wijesundera [1982] 1 Sri Kantha LR 164 at 168-169
4. Sir